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View of Ruling on the assumption of women as judges (comparative jurisprudence study)

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Ruling on the assumption of women as judges (comparative jurisprudence study)

Dr. Mohammed Jasim Naser Al-Zaidi

Assistant Professor, Diyala University / College of Education for Pure Sciences d.m6767@yahoo.com

Article History Received: 10 January 2021; Revised: 12 February 2021; Accepted: 27 March 2021; Published

online: 28 April 2021

Abstract: 1-The difference of the schools of jurisprudence regarding the assumption of the position of the judiciary of women

into four sayings

The first saying: It is not permissible for a woman to follow the judiciary at all, and her guardianship is null, and her spending is not enforceable, which is the view of the majority of the Maliki, Shafi’i, Hanbali and Zafar Ibn al-Hudhail from the Hanafi The second saying: It is permissible for a woman to follow the judiciary absolutely.

The third saying: It is permissible for a woman to follow the judiciary absolutely, with no limits or qisas, and her guardianship is valid and her rulings are valid as far as her testimony is accepted, and to this saying went the Hanafis, and Ibn al-Qasim of the Malikis

The fourth saying: Permissibility is absolutely permissible in case of necessity, and if it is found necessary, then necessities permit prohibitions, so it is permissible for a woman to assume the judiciary and implement her rulings Lest the interests of the people be disrupted; And to him went the Shafi'is

2-The preponderance of the opinion that a woman should assume the judiciary within certain limits, such as “the judiciary for women and other matters related to women that men do not see” in order to achieve the interest, and in line with the flexibility of Islam, and the requirements of the times.

1. Introduction

Praise be to Allah and peace be upon the master of messengers (Muhammad) and his family and companions, and after

The issue of women taking up the judiciary in Islamic jurisprudence is of great importance as it deals with the issue of women taking up the judiciary and this function in those times was on a limited individual scale. This era gave rise to this issue when Western traditions were mixed with Islamic provisions, and so-called emerging needs appropriate to the circumstances of contemporary life. The importance of the topic is also due to the fact that it deals with an important aspect of the judiciary in Islam, and to control the judicial task in Islam, so that the task of the judiciary in Islam is one of the honest tasks active in the Islamic society, especially if we know that the judiciary in any of the societies is the basis of justice the researcher everything he wrote about came through References and sources of jurisprudence in general.To shed light on the barriers related to women & apos; s access to justice and the caveats that lead to a halt in the performance of their functions, especially in the case of legitimate obstacles.the research plan required that the introduction be followed in three demands and a conclusion

The first requirement: the doctrines of the jurists regarding the issue of women becoming the judiciary : Scholars differed as to whether it is permissible for a woman to become a judge? Is she qualified for that? Or is she not qualified for this position, and if she is not qualified for the judiciary, is one of her guardians a sinner? And its ruling is correct? Perhaps on this issue we will review the scholarly disagreement regarding this, as the jurists agreed that masculinity is a condition for assuming the judiciary, and they differed as to whether a woman should assume the position of the judiciary on four sayings

The second requirement: the sayings of the jurists and the evidence they used The first saying :

It is not permissible for a woman to follow a judge at all, and that her guardianship is invalid, and her spending is not enforceable(1).

And they quoted as evidence for that in the Qur’an, Sunnah, consensus, analogy and reasonable First: They quoted as evidence from the book with the following

First: God Almighty’s saying:"Men are guardians over women by what God has favored one another over one another, and by what they have spent of their money" Surat An-Nisa verse 34

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The first: God Blessed and Almighty has shown that the man is superior to the woman over her by reason and opinion.(2)

The second: that the verse states that the guardianship is limited to men because the principle defined by the blame of sex is limited to its experience according to the rules of the Arabic language, but here is an additional restriction, that is, for women. The guardianship of the woman is the judiciary, except that the guardianship of women is over men, which is the opposite of what the verse states(3).

He will be answered in two ways

The first aspect: that what is meant by guardianship in the verse is the mandate to discipline, watch over women, and manage their affairs within the family, and guardianship over them in that

Like the judiciary and the like; And that was revealed in Sa`d Ibn al-Rabi` - may God be pleased with him - and his wife Habiba Bint Zaid bin Abi Zuhair - may God be pleased with her - this indicates that the verse was not mentioned in preventing a woman from assuming the judiciary, and therefore it has no indication of their opinion.(4)

It is presented

With what the fundamentalists decided: “That the lesson is in the generality of rudeness not regarding the reason.” The verse is general in the stewardship of men over women, and their guardianship over him in all matters except what the evidence provided from this general, and no reliable evidence has come to indicate that it is permissible for a woman to take over the judiciary.(5)

The second aspect: It was said that the guardianship in the verse is specific to guardianship in family affairs, because the verse stipulates matters related to the family, such as the husband’s maintenance on his wife. And the necessity of obedience to him from them; This is also motivated by the fact that what counts is the generality of the wording, and the word is general and includes guardianship in family affairs and other things, then even if that is accepted.

The woman’s inability to run a family of few members is prima facie evidence of her inability to take justice It is preliminary to the inability to manage the affairs of people, and to adjudicate Disputes and their rivalries.(6)

Second: God Almighty’s saying" They are like the one they have to do well, and for men they have a degree" Surah Al-Baqarah: Verse 228

The indicative face

The verse proves that each of the two parties has rights and duties towards the other, just as the degree of men and their superiority over women has proven, so that the woman’s assumption of the position of the judiciary is contrary to the degree that the aforementioned text has proven for men.(7)

Second: From the Sunnah, they infer the following:

First: Marawi, on the authority of Abu Bakra - may God be pleased with him - said: I heard the Messenger of God, may God’s prayers and peace be upon him, said: “A people will not succeed in their affairs with a woman.(8)

The indicative face:

The hadith indicates that it is not permissible for a woman to assume any state, whether small or large, because a woman is not suitable for the grand imamate as the head of state, so it is a fortiori that it is not suitable for the judiciary, so the hadeeth is to inform the unsuccessfulness of those who are in charge of a woman, and Muslims are forbidden to bring the lack of success to themselves, so they command. To acquire what becomes a cause of success, and Muslims are obligated by virtue of this noble text.(9)

Al-Khattabi said: “It contains knowledge that women do not relent the emirate and the judiciary among people".(10)

And he will be answered: What is meant by the great imamate, based on the evidence of the hadith's narration of Ali, the reason for it is that a knight reigned over them after the death of his daughter’s fracture. When the Prophet, peace and blessings be upon him, reached this point, he said: “A people will not succeed even if he orders them to a woman"

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That the lesson is in the general sense of the word not with regard to the reason, as is established in the science of fundamentals of jurisprudence, and the word “wala their affairs” is general, which includes the caliphate, the judiciary, and all states.(11)

Second: Marawi on the authority of his post - may God be pleased with him - on the authority of the Prophet, may God’s prayers and peace be upon him, who said: "Judges are three: one in Heaven and two in Hellfire. As for the one in Heaven, a man who “knew the truth and was ruled by it, and a man who knew the truth is in judgment and he is in Hellfire. And a man has decreed ignorance for people, for he is in Hell".(12)

The indicative face:

The hadith is clear indicative of the requirement that the judge be a man because, peace and blessings be upon him, while the judges mentioned that they are three, he separated them by saying: A man in the three times and he did not leave the saying with evidence of the man and the woman, such as the first, second and third.(13)

Imam Al-Shawkani said: “This is evidence of the requirement that a judge be a man.” In his understanding, he indicated the exit of a woman.(14)

Third: Marawi on the authority of Abu Sa`id al-Khudri - may God be pleased with him - on the authority of the Prophet, may God’s prayers and peace be upon him, who said: "I have not seen those who are deficient in reason and religion. Like half of the man’s testimony they said: Yes, he said: “This is part of her lack of mind, and if she menstruates, she does not pray and does not fast.” They said: Yes, he said: That is part of her lack of debt".(15)

The indicative face:

That the woman is deficient in reason and religion, and the judiciary is one of the general affairs of Muslims that leads to goodness

Society or its corruption, so his assumption of a deficient reason and religion is a harm to Muslims, and a cause of corruption, and this is forbidden.(16)

Al-Hafiz Ibn Hajar said: “What is meant by mentioning the shortage of women is not to blame them for that, because it is of the origin of creation".(17)

Third: Evidence for consensus:

It was not reported on the authority of the Messenger of God, may God bless him and grant him peace, nor from one of his adult successors after him that they had passed away from a woman, a district or a state, and if that was permissible, it would have occurred once, and most countries did not deviate from it.(18)

It is answered:

That Omar - may God be pleased with him - the guardian of healing a woman of his people is the matter of the market, and the calculation is a kind of judiciary.(19)

It is presented in three ways:

The first: that the news has not been proven, as Ibn Hazm - may God have mercy on him - lost his leg, not supported by the formula of nursing, which indicates weakness, as he said: It was narrated. The market is not valid, so do not pay any attention to it. Rather, it is one of the intrigues of innovated hadiths".(20)

The second: Omar - may God be pleased with him - is known for his jealousy, and the Qur’an was revealed to support him in that. He was not - may God be pleased with him - to give a woman over the interests of Muslims mixing with people in the market and mixing with her .

And the third: Even on the assumption that the narration is correct, it holds on me that Umar - may God be pleased with him - did not observe some matters related to women, such as enjoining them to wear hijab and modesty and so on.(21)

Fourth: They used the following as evidence for analogies and what is reasonable

First - by analogy with the great imamate: just as women are not permitted to assume the grand imamate, and likewise the judiciary, because it is part of the general mandate, and the woman is less than the rank of the imamate, so she is not suitable for general guardianship, nor for assuming countries.(22)

Ibn Rushd said: “Whoever rejects a woman’s judgment, he will be likened to the great imamate".(23)

Second - By analogy with preventing her from leading the prayers: just as a woman is not valid to lead the prayers, so too is the judiciary not valid for her to undertake it.

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Al-Mawardi said: “When the lack of femininity prevented her from leading the prayers with the permissibility of leading the immoral ,

Preventing the judiciary for the one who does not fit the debaucher preliminary".(24) And they cited the reasonable from him:

That the Judicial Council is attended by forums of men from opponents and others, and it needs perfection of opinion and complete intellect and intelligence, and women are not eligible to attend forums for men, and women are lacking in mind. She has few opinions, and her testimony is not accepted even if she has a thousand women with her, unless she has a man.(25)

God Almighty has warned of their misguidance and forgetfulness, by saying the Almighty" To mislead one of them and to remind one of the other" Surah Al-Baqarah: verse: 282

Note that a woman is forbidden to sit with men to prevent temptation because of this unnecessary contact.(26) The second view: it is permissible for a woman to assume the judiciary at all.

And to him he went: Ibn Jarir Tabari and Ibn Hazm Dhahiri, and it was narrated on the authority of al-Hasan al-Basri, may God have mercy on them.(27)

They cited the following:

1-What was narrated that Umar ibn Khattab - may God be pleased with him - is the guardian of Al-Shifa.(28) A woman of his people - the order of the market".(29)

Significance: Umar ibn al-Khattab - may God be pleased with him - the guardian of healing is considered in the market, and if a woman's assumption of high positions was forbidden by what Omar did, so it was not valid to be evidence of. The legitimacy of a woman's assumption of the position of hisbah is also true of the permissibility of a woman becoming a judge.(30)

2- That brown girl give you the stamens(31) The Messenger of God, may God’s prayers and peace be upon him and Omar, realized that she was passing through the markets, enjoining good and forbidding evil, and hitting people for that with a whip that was with her. And the calculation of the judiciary.(32)

3- His saying, may God bless him and grant him peace, "The woman is the guardian of her husband's household and she is responsible for them".(33)

The significance of the hadith:

That the woman is responsible only for the people of her home and is not required to do something outside it. Ibn Hazm said: “There was no text that would prevent her from following some matters".(34)

Second: It is reasonable to measure the following:

A measure of a woman’s assumption to eliminate her assumption of fatwas, and since a woman’s youth is valid because of her complete knowledge With regard to its issue, it must be made valid for the same reason.(35)

He shall be answered:

It is an analogy with the difference, because the fatwa is not a matter of states, because it is informing about a legal ruling and there is no obligation in it, and judging by it is informing with an obligation, so they separate.

Al-Mawardi said: “As for the permissibility of her girls and her testimony, because there is no guardianship in her, she did not prevent her femininity, even if she was prevented from.(36)

Moreover, there are many differences between judiciary and fatwas, the most important of which are:

1- That the judge’s ruling is partial and special, and does not extend to anyone other than the convicted person, while the fatwa is a general Sharia law for the questioner and others.

2- The fatwa accepts the abrogation, and the judiciary is not accepted, but rather it accepts the cassation when the nullity of what the judgment has arranged upon appears.(37)

3- The basic principle is that everyone from whom the separation of people comes, is permissible except for what was allocated by consensus from the greater mandate.(38)

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That it is rejected by opposing it with the authentic hadith, “A people whose affairs are a woman will not succeed,” which prevents women from assuming public matters, including the judiciary. Because we worship the evidence, then the woman does not result in separating people from her in the required manner. ! Because of her lack of reason and religion, and her weak opinion, which leads to corruption in the judiciary.(39)

4- The purpose of the judgments is the judge’s execution of them, hearing the evidence on them, and the separation of litigants

In it, and that is as possible from the woman as it is from the man.(40) And he will answer him: that it is rejected in two ways.

The first: This invalidates the great imamate. The purpose of it is to preserve the stomata, to manage matters, to protect the egg, to catch an abscess, and so on, and all of this comes from a woman as it comes from a man, and with that it is not permissible for a woman to be an imam and a caliph, and on this the consensus of the scholars has been established.(41)

The second: that a woman does not result in her appearing in public councils, mixing with men, and negotiating with them to negotiate with a peer to his counterpart, and she is prohibited from looking at men, and they are forbidden from looking at her, because if she is a girl, it is forbidden to look at her and speak to her, and if she is an old woman, she does not believe in her. Fitnah, whoever originally said: Hearing evidence from litigants and separating them is possible from the woman?.(42)

The third saying: They went that it is permissible for a woman to follow the judiciary absolutely in what it is permissible to testify about, that is, other than hudud and qisas.

And to him went: the Hanafi, and Ibn al-Qasim from the Malikis.(43) They cited their doctrine by analogy:

Measuring the judiciary of martyrdom, for the woman is one of the people of testimony, as they see the validity of her judgment in

All that her testimony is accepted and is acceptable to them except for the punishments and blood, so what is true about it

.Her testimony is valid to be served, and that the capacity for judiciary rotates with the capacity to testify.(44) Ibn Rushd said: “Whoever permits her ruling on money, then it is likened to the permissibility of her testimony in money.(45)

And he will be answered: That this is rejected by the difference between martyrdom and the judiciary, for testimony is not a state, while the judiciary is a state, and women are prohibited from guardianship, because the lack of femininity prevents states from being held. Such as leading the prayer, the judiciary is obligatory, and the testimony in private matters is partial, and the testimony is required in terms of number, while this is not required in the judiciary, so they separate, and if the difference between judgment and testimony is proven in several ways, one of them is refrained from measuring one on the other.(46)

Fourth saying:

It is permissible for a woman to assume the judiciary at all in the event of necessity, and if there is a need, then necessities are permissible Prohibitions, and enforce their provisions; Lest the interests of the people be disrupted; And to him went the Shafi’is.(47)

And they cited:

With what al-Nawawi said in al-Minhaj: The judge’s condition is that he be worthy of testimonies. That he be a Muslim, free, male .. and if he loses the aforementioned condition, that there is no man who is notable for him, then I have a sultan with a thorn, an unqualified Muslim, such as a debaucher, an imitator, a boy, and a woman who has fulfilled his judgment for necessity lest the interests of people be disrupted.(48)

It seems that the condition for this to be permissible is the existence of the necessity that calls for it, so that if the woman does not take over the judiciary People's interests are disrupted.

It is answered:

What they claim about the permissibility of a woman’s judiciary in the event of necessity is replied that: Although the necessities permit the prohibitions, the necessity does not materialize in the place that you

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1- That the matter is of necessity what the interest that takes place from it is in the place of necessity, meaning: it is necessary for the interests of the religion and the world to be established. So that if the interests of the world were not conducted on righteousness, but rather corruption and arrogance, and he lost life, and in the hereafter he missed salvation, the resident bliss, and the return through the evident loss, and this is not the case here, then the men are not completely absent, then it is not permissible to assume a woman with the presence of men, because men are guardians of me Women.

2- The adulterer here is given precedence over the woman when there is no justice and has the qualities of judgment, by analogy with presenting it in prayer when necessary, because the adulterer may not lack opinion, so perhaps he was more intelligent than a woman who was deficient in reason and religion.

Third requirement: weighting:

Weighting: After we have presented the opinions of scholars and jurists and their evidence on this issue, and in view of our reality, the spirit of legislation and its rules, we have the opinion which dictates that women assume the judiciary within certain limits, such as the judiciary for women and other matters related to women that men do not see, in order to achieve the interest, In keeping with the flexibility of Islam, God knows best.

References

1. 1-See: Bidaya al-Mujtahid: 2/460, al-Qawun al-Fiqh: p. 195, al-Muhdhab by al-Shirazi: 2/290, Mughni al-Muhtaj: 4/375, Scouts al-Qanaa: 6/294, al-Kafi in the jurisprudence of Ahmad ibn Hanbal: 4/432, Mercy of the Ummah in difference The Imams of Damascene: p. 21.

2. 2- See: Adab al-Qadi by al-Mawardi: 1/117, Interpretation of the Great Qur’an by Ibn Katheer: 1/571. 3. 3- See: Explanation of Ibn Aqeel: 1/117, Explanation of al-Kawkab al-Munawir: 3/519, The Judicial

Authority in Islam: p. 117.

4. 4- See: The reasons for descending to one: p. 155

5. 5- See: Tafsir al-Tabari: 8 / 291-292, Al-Jami 'for the provisions of the Qur’an: 5/168, Jurisdiction: pg. 275 ff.

6. 6- Same previous source.

7. 7- See: the interpretation of Ibn Katheer: 2/292.

8. 8- Sahih Al-Bukhari: 9/55 H 7099, Book of sedition, chapter on sedition that ripples like waves of the sea.

9. 9- See: Paths of Peace by Al-Sanani: 4/1469. 10. 10- See: Fath Al-Bari: 8/12.

11. 11- See: Studies in Comparative Jurisprudence, Ali Abu Al-Basal: pg. 117 and beyond, and jurisdiction: pg. 375 ff.

12. 12- Narrated by Abu Dawood: 5/466, H 3573, the chapter in the judiciary is a chapter in the judge who makes mistakes. Abu Dawud said and this is the most correct thing about it, meaning the hadith of Ibn Bareidah.

13. 13- See: Neal Al Awtar: 9/167. 14. 14- See: Same source: 8/303.

15. 15- Narrated by Imam Al-Bukhari: 1/68, H34, chapter on menstruating women abstaining from fasting, and Imam Muslim: 1/86, H79, chapter on explaining the lack of faith in the lack of obedience.

16. 16- See: Explanation of Munta 'Al-Iradat by al-Bahouti: 3/492. 17. 17- See: Fath Al-Bari: 1/406.

18. 18- Seen: Al-Mughni: 11/380. 19. 19- See: Judiciary in Islam: p. 3.

20. 20- See: Ahkam al-Qur’an by Ibn al-Arabi: 3/1457, Al-Jami 'al-Ahkam al-Qur’an by al-Qurtubi: 1/13. 21. 21- See: Judiciary in Islam, p. 30.

22. 22- See: Judiciary in Islam, p. 30. 23. 23- See: Bidaya al-Mujtahid: 4/428 24. 24- See: Adab al-Qadi by Mawardi: 1/628.

25. 25- See: Mughni al-Muhtaj: 4/375, al-Mughni: 1/380, Scouts al-Qanaa: Al-Bahouti: 6 / 294-295.

26. 26- See: Mughni Muhtaj: 4/375, Mughni: 11/380, Scouts Qanaa: 6/295, Ahkam Qur’an Ibn al-Arabi: 3/458, and in this sense mentioned the Contracts Jewels of Shams al-Din al-Assiuti: 2/290. 27. 27- See: Bidayat al-Mujtahid: 2/460, Al-Mahli Balathar: 9/429.

28. 28- She is “Al-Shifa Bint Abdullah Bin Shams Bin Khalaf Al-Quraish Al-Adawiya”, and her name is Layla, and she is the most venerable of Al-Shifa. Nor do anything about the market matters, see: the infection in the discernment of the Companions 7/727, the great classes of Ibn Sa`d: 5/26.

29. 29- See: the sweetener with antiquities: 9/042. 30. 30- See: previous source: 9/430.

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31. 31- See: Al-Mahli in Athar: 8/527, Assimilation in Knowledge, Al-Ashaba: 1/602, Infection in discerning the Companions: 7/712.

32. 32- See: The Collector of Zawa'id and the Source of Benefits by Al-Haythamy: 9/0 294.

33. 33- Narrated by Al-Bukhari: 9/62, H 7138, Book of Rulings, and Muslim: 3/1459, H 1829, in the Book of the Principality, the chapter on the virtue of the just prince, the punishment of the unjust and the urge to be kind to the parish.

34. 34- See: Al-Local Balathar: 8/314. 35. 35- Seen: Al-Mughni: 11/380.

36. 36- See: Adab al-Qadi by al-Mawardi: 1/628.

37. 37- See: Rulings on distinguishing fatwas from rulings and the actions of the judge and the imam: 100/99 103, informing the signatories: 1/36.

38. 38- See: Bidaya al-Mujtahid: 4/429.

39. 39- See: Explanation of Muntaha Al-Iradat by Al-Bahouti: 3/492, Al-Mughni: 14/12.

40. 40- See: Ahkam al-Qur’an by Ibn al-Arabi, vol. 3, p. 1457, al-Jami 'al-Ahkam al-Qur’an by al-Qurtubi: 1/13.

41. 41- See: The provisions of the Qur’an by Ibn al-Arabi: 3/14.

42. 42- See: Explanation of the Sunnah by al-Baghawi: 10/77, Ahkam al-Qur’an by Ibn al-Arabi: 3/1458. 43. 43- See: Bada'i 'al-Sanai' al-Kasani: 7/3, al-Hidayah al-Marghanani: 3/107, Ibn Abdin’s retinue: 4/356,

Rawdat al-Qudah by al-Samanani: 1/53, al-Jaleel talents: 6/88. 44. 44- See: Badaa` al-Sanay`: Al-Kasani: 7/3.

45. 45- See: Bidaya al-Mujtahid 2/344.

46. 46- See: Adab al-Qadi by al-Mawardi: 1/628.

47. 47- See: Camel's footnote: 5/338, Mughni al-Muhtaj: 6/26. 48. 48- See: Al-Minhaj Al-Nawawi: 1/483.

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